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AF | BCMR | CY2004 | BC-2004-00024
Original file (BC-2004-00024.DOC) Auto-classification: Denied


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00024
            INDEX NUMBER:  137.00

            COUNSEL:  YES

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased husband’s records be corrected to show  that  he  elected
spouse coverage under the Survivor Benefit Plan (SBP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was told she was not entitled to  the  SBP  because  she  and  the
member were divorced.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The former service member and the applicant were married on     18 Dec
56.  DFAS records indicate that the former service member declined SBP
coverage prior to his 1 July 1978 retirement.  The parties divorced on
11 Oct 95, and the member died on 19 Apr 97.  On 30 Apr 98,  applicant
petitioned the court and had the divorce decree set aside.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPTR recommended denial and states, in part, since the member
did not elect SBP coverage on the  applicant’s  behalf,  she  was  not
eligible to receive an SBP annuity upon his death  regardless  of  her
marital status.  The member had an opportunity to provide coverage for
the applicant during the SBP open  enrollment  periods  authorized  by
Public Laws (PLs) 97-35 (1 Oct 81 – 30 Sep 82) and 101-189 (1 Apr 92 –
31 Mar 93), but there is no evidence he made such an election.  During
each enrollment period, members were advised by direct mail  of  their
eligibility to make  an  election.   The  fact  that  the  applicant’s
divorce was nullified is not sufficient justification  to  grant  this
request and would provide her an additional opportunity, not  afforded
to other survivors, whose sponsors declined SBP protection for them.

A complete copy of the Air Force evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant is again asking for fairness and justice in  her  appeal
to the board, stating that her limited  English  vocabulary,  lack  of
understanding of U.S. military  procedures  and  regulations,  further
complicated her situation.  She requests the benefit of doubt be given
to her, by correcting her deceased husband’s record to show he elected
spouse SBP coverage based on full retired pay (Exhibit E).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and  adopt  their  rationale  as  the
basis for our conclusion that the applicant has not been the victim of
an error or injustice.  The former member had three  opportunities  to
establish survivor coverage in the applicant’s behalf,  prior  to  his
1978 retirement and during  two  subsequent  open  enrollment  periods
authorized by Congress.  However, there is no evidence he made such an
election.  Therefore, in the absence of evidence to the  contrary,  we
find no compelling basis to recommend granting the  relief  sought  in
this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2004-
00024 in Executive Session on 14 April 2004, under the  provisions  of
AFI 36-2603:

      Mr. Roscoe Hinton Jr., Panel Chair
      Mr. Michael J. Novel, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Dec 03, w/atchs
    Exhibit C.  Letter, AFPC/DPPTR, dated 6 Feb 04
    Exhibit D.  Letter, SAF/MRBR, dated 10 Feb 04
    Exhibit E.  Letter, Counsel, dated 23 Feb 04




                                   ROSCOE HINTON JR.
                                   Panel Chair

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